Wednesday 29 June 2016

Explain why you freeze Fayose’s account, Court orders EFCC, Zenith bank

The Federal High Court, Ado-Ekiti has ordered the Economic and FinancialCrimes Commission and the Zenith Bank plc to show cause why an OrderExparte to defreeze Governor Ayodele Fayose’s accounts, filed yesterday tothe court by the governor’s legal team, should not be granted.The judge gave Monday July 4 for the anti-graft agency and Zenith bank Plcto appear in court with the said evidence.Mr Mike Ozekhome (SAN), had through an exparte order deposed to on the24th of June, 2016 by Bimpe Olatemiju sought a mandatory order de-freezingthe accounts belonging and operated by him pending the determination ofhis interlocutory application.Joined in the suit are the EFCC (1st defendant) and Zenith bank (2nddefendant). The order was supported by 18-paragraph affidavit , a loneExhibit, which was a letter issued to Governor Fayose by Zenith bankconfirming that the EFCC actually placed arestriction order on theaccounts and a written address .He also sought the leave of the court for the service of the originatingsummons on the defendants in  their various addresses outside thejurisdiction of the court as contained on the order papers, supported by17-paragraph affidavit.Ozekhome said the order was brought pursuant to order 26 rule 8(1) of theFederal High Court Civil Procedure Rule 2009 and Section 44(1) of the 1999constitution which gives the court the discretionary powers to adjudicateon such matter.Citing the case of Abdulaziz Nyako Vs EFCC to buttress his position thatthe anti-graft agency has no power to freeze Fayose’s account withoutvalid court order, Ozekhome added the action was a flagrant negation ofthe Section 308 of the constitution, which conferred absolute immunity onthe government against civil and criminal procedure.He said it was appalling that the EFCC could play ostrich to these validconstitutional requirements and took cognizance of the African Charters onHuman and People’s Rights before taking the punitive stand against Fayose,adding that these infractions had renderedthe action unconstitutional,wrongful , null and void .Delivering his ruling, Justice Taiwo Taiwo, said that he quite understoodthat the applicant (Fayose) enjoys immunity and that the court canadjudicate on this matter as canvassed by the counsel to the plaintiff,but he pointed out that the relief he basically sought was a mandatoryorder of the court.“I quite agree that the applicant has immunity pursuant to provisions ofthe constitution, but it is glaring that the application he is requestingfor is a mandatory order to undo what had already been done and the courtcan’t abdicate its duty under this circumstance.“I am of the opinion that this mandatory order is better granted with theinterlocutory order being sought through an application pending before thecourt , because the applicant has filed all papers to this effect.“I hereby ordered the 1st and 2nd respondents to appear before thishonourable court on July 4, 2016 and show cause why the order should berefused.“This is not a refusal of the order, I have not refused it, but I only putit in abeyance which I said without prejudice to what will be the positionof the respondents .“But a leave is granted for the service of the defendants with theoriginating summons in their respective addresses as contained on theorder papers”, the Judge ruled.Describing the presiding judge as very at home with the law and a highlyexperience lawyer, Ozekhome said told newsmen that: “our motion was anexparte for the de-freezing and removal of restriction placed on citizenAyodele Fayose ‘s two accounts with the Zenith Bank Plc.“The bank claimed through a letter made available to our client that itacted on the instructions of the EFCC and we are here by way oforiginating summons to say that the EFCC has no powers, whether under theEFCC Act, money laundering Act, under the constitution or any other knownlaw to freeze the accounts of a sitting governor who enjoys immunity undersection 308 of the Constitution of Federal Republic of Nigeria, 1999asaltered because that section makes it clear that for the time that personis in that office, the President, Vice-President, Governor andDeputy-Governor he enjoys absolute immunity from any civil or criminalprocedure and that no court process can issue against such person.“So, EFCC could not have obtained an order Exparte to freeze his account,if they did that, it is illegal, null and void. It could also not havefrozen his accounts without having an order Exparte, ” he said.Asked what would be the the legal team’s next step should the EFCC failsto honour the court’s order on Monday, July 4, Ozekhome said thegovernment agency cannot dare a Federal High Court’s order.In a related development, the same court today, vacated an Order ofExparte sought by the factional Ekiti State chapter of the Peoples’Democratic Party (PDP) allegedly loyal to Senator Buruji Kashamurestricting the executives of the party in Ekiti, loyal to governorFayose, from parading themselves as authentic Excos of the party.

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